Issue: Whether the defendant's failure to cover lung volume reduction surgery under the Medicare program violates Medicare and APA requirements.

Relief sought: Declaratory and injunctive relief regarding lung volume reduction surgery in particular and the promulgation of national coverage standards in general.

Status: The court did not allow plaintiffs to do any discovery, and the parties filed cross-motions for summary judgment. Without oral argument, on February 15, 2001 the judge partially granted and partially denied defendant's motion to dismiss, holding that his decision would stand as the date of denial of the claim (at what level of administrative review is not clear), so that the plaintiff could pursue his claim in the administrative process. He then denied the cross-motions for summary judgment. Plaintiffs' Rule 59 motion asking that the judge retain jurisdiction pending administrative review was denied on March 13, 2001. Plaintiff did not appeal.

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